COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 81545 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION STEPHEN M. KRUTOWSKY : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 3, 2003 : CHARACTER OF PROCEEDINGS : Civil appeal from : Common Pleas Court : Case No. CR-294735 : JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON, ESQ. Cuyahoga County Prosecutor BY: L. CHRISTOPHER FREY, ESQ. Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: HARRY A. TIPPING, ESQ. ALISON M. BREAUX, ESQ. Harry A. Tipping Co., L.P.A. One Cascade Plaza Suite 2200 Akron, Ohio 44308 -2- FRANK D. CELEBREZZE, JR., J.: Appellant, Stephen Krutowsky, appeals the decision of the lower court denying his motion to seal the record of his conviction under R.C. 2953.32. Upon review of the record and the legal arguments of the parties, we affirm. Krutowsky's conviction stems from depositions taken in civil litigation pending in another jurisdiction. He forged cognovit notes and thereby defrauded investors in his corporations and partnerships. Attorney Michael Hennenberg was one of Krutowsky's victims. On March 22, 1993, Krutowsky was indicted by the Cuyahoga County Grand Jury and charged with two counts of forgery, in violation of R.C. 2913.31; two counts of uttering, in violation of R.C. 2913.31; and one count of perjury, in violation of R.C. 2921.11. On September 8, 1993, he pleaded guilty to criminal mischief, in violation of R.C. 2909.07, a misdemeanor of the third degree, as amended in count one. On September 24, 1993, he was sentenced to Lake County Jail for a term of 60 days with credit for time served. On November 3, 1993, an order was journalized releasing him, suspending the remainder of his sentence and placing him on probation for nine months with full restitution made to the victims. -3- In March 1996, Krutowsky filed a motion to seal the record of his conviction. On August 16, 2001, the trial court held a hearing and Krutowsky presented several affidavits pertaining to his character and his rehabilitation, including affidavits from Robert Saffian, Frank Dombrowski, Don Robart (Mayor of Cuyahoga Falls), Steven Keller (Federal Public Defender) and George Bolek. He provided the trial court with information that he had complied with conditions of the settlement agreement between himself and Mr. Hennenberg, one of the victims. He assured the court that all investors who were defrauded had been repaid. He displayed remorse for his actions and also informed the court that he had changed his business practices by hiring in-house counsel. The State concurred that Krutowsky was an eligible offender and did not formally oppose his motion. Mr. Hennenberg did not appear for the hearing; however, he did inform the prosecutor 's office that he possessed mixed emotions regarding the application for expungement. On July 12, 2002, the lower court denied Krutowsky's motion for expungement by journal entry without further explanation. Krutowsky now appeals and presents one assignment of error for our review: "The trial court abused its discretion in denying appellant, Stephen Krutowsky's motion for expungement." -4- R.C. 2953.32(C)(1) sets forth the requirements the trial court shall follow to determine if an applicant is entitled to have his record of conviction sealed or expunged. If the trial court, after complying with R.C. 2953.32(C)(1), finds that the applicant is a first time offender, that there are no other criminal proceedings pending against the applicant, and that there is not a legitimate governmental need to maintain the records which outweighs the interest of the applicant in having his record expunged or sealed, the court shall order the applicant's record expunged or sealed. See R.C. 2953.32(C)(2). Every applicant, however, is not entitled to have his record expunged. R.C. 2953.32 was amended in 1984 to provide a heightened emphasis on the applicant's interest in having his record sealed from the public. State v. Greene (1991), 61 Ohio St.3d 137. The trial court has considerable discretion when weighing the applicant's interests with the government's interest. State v. Tyler (Aug. 20, 2002), Franklin Cty. No. 01AP-1055 citing State v. Haney (1991), 70 Ohio App.3d 135. This court must consider whether the lower court abused its discretion when it weighed the defendant's interest against those of the government. Tyler (Aug. 20,2002), Franklin Cty. No. 01AP- 1055. An abuse of discretion is more than an error of law or judgment; it implies that the court's attitude is unreasonable, -5- arbitrary or unconscionable. State v. Clark (1994), 71 Ohio St.3d 466, 470; State v. Moreland (1990), 50 Ohio St.3d 58, 61; State v. Adams (1980), 62 Ohio St.2d 151, 157. In order to have an abuse of discretion, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256. Moreover, when applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe I (1991), 57 Ohio St.3d 135, 138; Berk v. Matthews (1990), 53 Ohio St.3d 161, 169. In State v. Hilbert (2001), 145 Ohio App.3d 824 at 827, this court held that "the court must weigh the interest of the public's need to know as against the individual 's interest in having the record sealed, and must liberally construe the statute so as to promote the legislative purpose of allowing expungement." The court further stated, "* * * the legislature which is closer to the people recognized that people make mistakes, but that afterwards they regret their conduct and are older, wiser and sadder * * *. The unarguable fact is that some people do rehabilitate themselves." 145 Ohio App. 3d 827. -6- Appellant argues in his reply brief that without any explanation or reasoning, it is impossible to determine the trial court's position relating to its denial of the expungement application. The Ohio Supreme Court, in Coleman v. McGettrick, Sheriff (1965), 2 Ohio St.2d 177, addressed a similar issue when confronted with no written opinion in the court's denial of bail. The petitioner argued that the lack of a written opinion in its denial of bail and the court's subsequent denial of bail constituted a groundless and arbitrary act. The Ohio Supreme Court held that such assumption by the petitioner cannot validly be made because there is a presumption of regularity which adheres to all judicial proceedings. Id. There is no requirement that the court set forth its reasoning when granting or denying an expungement. While R.C. 2953.32 provides that the court shall make determinations under R.C. 2953.32 (C)(1)(a)-(e), the legislature could have easily specified that the phrase "shall determine"shall mean that the court shall set forth its reasoning on the record and/or in writing. However, the legislature specifically worded this particular statute differently from other statutes intended to dictate that result. In contrast, Am.Sub. S.B. 2 substantially revised the sentencing guidelines, which specifically contemplated certain -7- instances wherein the lower court must make written findings or findings on the record. For example, R.C. 2929.14 provides, "* * * unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crimes by the offender or others." R.C. 2929.19 provides, "* * * the court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances." Accordingly, the legislature provided certain circumstances whereby findings or reasons shall be made on the record and/or in writing. Therefore, we will not interpret R.C. 2953.32 as requiring such a reading absent explicit legislative directives to do so. Admittedly, it would be a better practice for the lower court to provide an explanation for its decision in this regard. However, without an explanation from the lower court for its decision and, given the state's lack of objection to the motion, when this court reviews the lower court's ruling, it places us at some disadvantage. Nevertheless, the record contains sufficient information from which we can conclude the lower court did not abuse its discretion by denying the motion. Although the appellant has -8- made restitution in full to his victims, the record suggests that one of the victims received substantial assistance from his creditors, who apparently gave the victim significant leeway in repaying debts that we must assume arose as a result of the appellant's criminal acts. The direct damage might have been repaid, but the victim suffered collateral consequences as a result of appellant's criminal acts. This could be a valid factor in the court's decision to deny the motion. Furthermore, the appellant continues to conduct business transactions with the public as the Vice President of Union Commerce Corporation, which poses a potential risk to the public. Although the appellant has taken steps to avoid future criminal conduct in his business, the lower court's denial of the motion to seal the conviction infers that the public's need to know outweighs the interests of the appellant in this case. The very broad abuse of discretion standard prohibits this court from substituting its judgment for that of the lower court. We cannot say the lower court abused its discretion in denying the motion to seal the record of the convictions. Judgment affirmed. -9- It is ordered that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANK D. CELEBREZZE, JR. JUDGE MICHAEL J. CORRIGAN, P.J., CONCURS. ANNE L. KILBANE, J., DISSENTS (WITH SEPARATE DISSENTING OPINION). N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 81545 STATE OF OHIO, : : Plaintiff-Appellee : D I S S E N T I N G : vs. : O P I N I O N : STEPHEN M. KRUTOWSKY : : Defendant-Appellant : DATE: APRIL 3. 2003 ANNE L. KILBANE, J., DISSENTING: On this appeal from an order of Judge Daniel Gaul that denied the motion to seal the record of a conviction, I respectfully dissent because the judge's failure to explain the basis for his decision prevents any meaningful appellate review. I would remand this case so the judge could articulate his reasons for the determination. In March 1996, Krutowsky moved for the expungement of his third degree misdemeanor conviction, but no hearing was scheduled until August 2001, and the judge did not rule on the application until July 2002. The primary victim told the prosecutor he had mixed emotions about Krutowsky 's application, but took no position as to whether the record should be sealed. The State -2- did not object to the request, persons of standing vouched for Krutowsky's character and rehabilitation, and he testified to remorse and a firm purpose of amendment. Despite this evidence and the fact that no one objected to the expungement or presented evidence in favor of denying the request, the judge denied the application without any explanation in an order filed eleven months after the hearing was held and over six years after Krutowsky filed the request. R.C. 2953.32(C) requires that in ruling on the application for sealing the record: "(C)(1) The court shall do each of the following: "(a) Determine whether the applicant is a first offender * * *; "(b) Determine whether criminal proceedings are pending against the applicant; "(c) * * * determine whether the applicant has been rehabilitated to the satisfaction of the court; "(d) if the prosecutor has filed an objection in accordance with division (B) of this section consider the reasons against granting the application specified by the prosecutor in objection; "(e) Weigh the interests of the applicant in having the records pertaining to the applicant's conviction sealed against -3- the legitimate needs, if any, of the government to maintain those records. "(2) If the court determines, after complying with division (C)(1) of this section, that the applicant is a first offender * * *, that no criminal proceeding is pending against the applicant, and that the interests of the applicant in having the records pertaining to the applicant's conviction * * * sealed are not outweighed by any legitimate governmental needs to maintain those records, and that the [applicant's] rehabilitation * * * has been attained to the satisfaction of the court, the court * * * shall order all official records pertaining to the case sealed * * *." While a judge has discretion in making these determinations, that discretion is not absolute; both the applicant and the State have the right to appeal the grant or denial of expungement,1 and this court has authority to provide relief upon finding an abuse of discretion.2 In order to review a judge's order for abuse of discretion, we must be able to ascertain the reasons motivating the exercise 1State v. Bissantz (1988), 30 Ohio St.3d 120, 121, 30 OBR 434, 507 N.E.2d 1117. 2State v. Hilbert (2001), 145 Ohio App.3d 824, 827, 764 N.E.2d 1064. -4- of discretion.3 While we may be able to review some unexplained discretionary rulings from the evidence in the record, we should not do so unless the record plainly shows the reasons for the ruling.4 Even where the record might support a judge 's conclusion, the order might still be an abuse of discretion if the judge relied on improper factors or mistaken beliefs in making it.5 Such cases require reversal or remand for the proper exercise of discretion.6 While the majority easily could find from the record that Krutowsky regretted his offense, had mended his ways, and had a substantial personal interest in having it put behind him, 7 it labored to create a basis to affirm, stating that the victim's supposed "collateral consequences * * * could be a valid factor in the court's decision[,]"and that Krutowsky's current position "poses a potential risk to the public." (Emphasis added.) This reach to affirm clashes with the standard of review because 3Antal v. Olde World Prods., Inc. (1984), 9 Ohio St.3d 144, 146, 9 OBR 392, 459 N.E.2d 223. 4Richards v. Santini-Diaz (Aug. 3, 2000), Cuyahoga App. No. 75806; Hoffman v. Hoffman, 1999-Ohio-797, Union App. No. 14-98-56. 5State v. Greene (1991), 61 Ohio St.3d 137, 140, 573 N.E.2d 110. 6Id. 7Hilbert, 145 Ohio App.3d at 828. -5- relief under R.C. 2953.32 "is to be liberally granted, and it is an abuse of discretion not to do so." 8 Despite the fact that the majority is forced to speculate on the judge 's reasoning, it finds that he did not abuse his discretion even though the record is insufficient to allow any review of that discretion 's exercise. Moreover, the inordinate delay between the hearing and the order in this case suggests the opposite of an informed exercise of discretion; without an indication of the judge 's reasoning, one could just as easily conclude that he denied the application without any meaningful recollection of the facts. Contrary to the majority's opinion, there is no need for a statute or rule requiring the judge to set forth his reasoning when making a particular order.9 Moreover, explanations are most frequently required where, as here, the judge is called upon to make a decision after weighing the evidence and balancing a number of factors.10 These cases show that appellate courts have the authority to require judges to state reasons for their 8Id. 9See, e.g., Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 97, 518 N.E.2d 1197 (judge must state basis for spousal support under R.C. 3105.18); Bittner v. Tri-County Toyota, Inc. (1991), 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (award of attorney fees under R.C. 1345.09); State v. Krivanek, 2002-Ohio-3963, Lake App. No. 2001-L- 030, at ¶27 n.2 (sexual predator proceedings). 10Kaechele; Bittner; Krivanek. -6- decisions, and that requiring statements by statute or rule in some cases does not prohibit requiring them in others. The focus of the inquiry should not be the lack of an express statutory requirement, but whether the statement is necessary to allow meaningful review.11 Furthermore, such cases do not require a request under Civ.R. 52, but hold that a party is entitled to a statement of the basis of the decision as a matter of course. 12 Such a rule should be applicable here as well because the grant or denial of expungement can rarely, if ever, be reviewed without some explanation of the reasons for the judge's decision. Nor should the "presumption of regularity that adheres to all judicial proceedings"13 be employed for the purpose sought by the majority, because that presumption refers to the satisfaction of procedural requirements that are not otherwise shown to be lacking,14 or to decisions on matters in which the appellant is held responsible for the lack of a record because either (1) the appellant bore a high burden of proof and can be faulted for 11Antal, supra. 12Hoffman, supra; Edgell v. Edgell (Mar. 3, 1993), Clark App. No. 2945. 13Coleman v. McGettrick (1965), 2 Ohio St.2d 177, 180, 31 O.O.2d 326, 207 N.E.2d 552. 14State v. Hawkins, 74 Ohio St.3d 530, 531, 1996-Ohio-24, 660 N.E.2d 454. -7- failing to present sufficient evidence; 15 or (2) the appellant had the duty to ensure that evidence was placed in the record and failed to do so. 16 Krutowsky placed sufficient evidence in the record to sustain his application, and that evidence was thus entitled to fair consideration. By requiring the record to contain evidence rebutting an unexplained denial, the majority has effectively raised Krutowsky's burden of proof beyond the liberal standard stated in Hilbert, and he is now required to present incontrovertible evidence of his entitlement in order to show an abuse of discretion. Where appellate review is provided, litigants are constitutionally entitled to procedures that will render that review meaningful rather than illusory. 17 The judge, therefore, does not have absolute discretion in determining whether to grant the application, and a reviewing court must evaluate that decision by reviewing the testimony and comparing it with the 15See, e.g., Coleman, supra (defendant has no right to bail on appeal, and denial will be reversed only upon "patent" abuse of discretion). 16Hartt v. Munobe, 67 Ohio St.3d 3, 7, 1993-Ohio-177, 615 N.E.2d 617. 17Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80, 84- 85, 523 N.E.2d 851. -8- judge's findings.18 Where the basis for the judge 's decision is not readily apparent, it is impossible for a reviewing court to assess the exercise of discretion, and affirming orders in such cases effectively grants the judge absolute discretion and renders our review illusory in violation of procedural due process rights.19 I would remand with instructions to the judge to state the basis for his decision. 18In Re Jane Doe 1 (1990), 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181. 19Atkinson, supra. .